Cockey v. Cole

• Decision Date: 14 February 1868
• Citation: 28 Md. 276
• Parties: JOHN R. COCKEY and THOMAS T. COCKEY v. SALATHIEL COLE.
• Court: Maryland Court of Appeals

28 Md. 276

JOHN R. COCKEY and THOMAS T. COCKEY v. SALATHIEL COLE.

Court of Appeals of Maryland

February 14, 1868

APPEAL from the Circuit Court for Baltimore County.

This was an action of trover instituted on the 19th of August, 1863, by the appellee against the appellants for the conversion of a crop of wheat. At the trial, the plaintiff produced evidence to show that the crop of wheat in controversy was sown by him in the fall of 1862, while the land was in his possession and ownership, and that the same was cut in the summer of 1863, by Thomas T. Cockey, one of the defendants, and converted to the use of both. Evidence of the value of the wheat was also offered. The defendants then offered in evidence the record in the case of Orville Horwitz vs. Salathiel Cole, for the purpose of proving that the title to the aforesaid land and wheat had passed to the defendant Thomas T. Cockey, on or about the 8th of December, 1861, and before the wheat was converted to the use of the defendants. The case of Horwitz vs. Co., was a proceeding for the sale of the land on which the wheat in question was growing, under a mortgage from Cole and wife to Horwitz, dated the 20th of February, 1861; and under which proceeding the land had been sold to Thomas T. Cockey. The plaintiff objected to the admissibility of the record so offered in evidence, and the Court (PRICE, J.) sustained the objection. To this ruling of the Court the defendants excepted, and the verdict and judgment being against them they appealed.

The cause was argued before STEWART, BRENT, GRASON, MILLER, ALVEY and ROBINSON, J.

E G. Kilbourn and I. Nevett Steele, for the appellants.

The important question in the case, is the validity of the sale of the property to the defendant Thomas T. Cockey, under the proceedings in the case of Horwitz vs. Cole, which sale was duly reported to, and ratified by the Circuit Court for Baltimore county. With this sale the Court will not interfere unless compelled absolutely. Elliott and Wife's Lessee vs. Knott, 14 Md. Rep., 134. Not only is there no necessity for any interference which would invalidate that sale, but there is no ground for such interference. It is charged on the part of the appellee that the trustee's bond filed in that case is defective in the language of its condition.

The appellants, on the other hand, maintain that the bond was valid and sufficient. It was a good bond under the requirements of the 64th Article of the Code of Pub Gen'l Laws; for although a statutory bond should be substantially in accordance with the provisions of the statute, it is not necessary that the precise language of the Act should be pursued, even where the form of the bond is prescribed. Webster's Lessee vs. Hall, 2 H. & McH., 19; Hall vs. Gittings, 2 H. & J., 390; Hamilton vs. State, 3 H. & J., 503; Waters vs. Riley, 2 H. & G., 312; Young vs. State, 7 G. & J., 253.

The condition of the bond in question, is that "the trustee shall well and truly perform the trust reposed in him &c." Now as it has been often determined that the failure of a trustee to comply with any order of the Court having jurisdiction of the case, is a breach of the condition of the bond; it follows that a failure to comply with an order of the Court, is a failure to fulfil the duties of his trust. Brooks vs. Brooke, et al., 12 G. & J., 317. This bond refers to the mortgage itself, and must therefore be construed, so far as its condition is concerned, in regard thereto, precisely as in the case of Wood vs. Fulton & Starck, 2 H. & G., 71.

Nor is a statutory bond considered void, unless by the statute it is declared so, in the event of the form not being complied with. Van Deusen vs. Hayward, 17 Wend., 67; Ring vs. Gibbs, 26 Wend., 502; Justices of the Inferior Court vs. Adm'r of Wynn, Dudley's Rep., 24; Central Bank vs. Kendrick, Dudley's Rep., 66.

Nor was it ever heard that a bond was considered insufficient under a statute, because the obligors undertook by the condition more than the statute required, or because the condition was too broad. Ring vs. Gibbs, 26 Wend., 502; Speck vs. Commonwealth, 3 Watts & Serg., 324.

If the bond in question is not good as to its condition under the 64th Article of the Code, then, as after forfeiture this deed of mortgage became a deed of trust by its terms and provisions, the bond is good and sufficient under the provisions of the 81st Article of the Code, the precise language of which it follows. Code of Pub. Gen'l Laws, Art. 81, sec. 116.

The sale could have been made without a bond under the provisions of the deed, and the report of the sale and ratification by the Court, whose jurisdiction had been invoked, were only efficacious in confirming the act of the trustee and bringing the fund into Court for distribution.

The sufficiency of the bond cannot be enquired into collaterally It must be conceded that in no case can the proceedings of a Court of competent jurisdiction be enquired into collaterally. It being once ascertained that the Court had jurisdiction of the subject matter, all the proceedings are, in a collateral enquiry, presumed to be correct, and even in a case where the Court had not jurisdiction, it must appear affirmatively by the record that the jurisdiction did not attach. Raborg vs. Hammond, 2 H. & G., 50; Cooper vs. Sunderland, 3 Clarke, ( Iowa,) 114; Fridge vs. The State, use of Kirk, 3 G. & J., 103; Vorhees vs. The Bank of the United States, 10 Peters, 470, 474.

The Circuit Court for Baltimore county, had entire jurisdiction of the subject matter. It is a Court of general jurisdiction. Harvey vs. Tyler, 2 Wallace S. C. R., 341; Con. of 1867, Art. 4, sec. 8; Code of Pub. Gen'l Laws, Art. 29, sec. 44.

The provision in regard to mortgages is a general provision in reference to the subject matter of mortgages conferring jurisdiction on all the Courts of the State of general jurisdiction, and with full power and entire control over the subject. Code of Pub. Gen'l Laws, Art. 64.

It does not in any respect assimilate to the Act of 1826, and the case of McCabe vs. Ward, 18 Md. Rep., 505, relied on by the appellee:

1. Because it has reference to a special and limited power.

2. Because it was an appeal from a decision of the Court in the case itself.

3. Because the bond in that case was an impossible bond.

When the jurisdiction itself depends on a question to be decided by the Court, the jurisdiction attaches if decided by the Court, and not appealed from. Grignon's Lessee vs. Astor, et al., 2 Howard, 338.

Cole, by his petitions filed in the case, became a party thereto, and assented thereby to the proceedings of the Court, and made its jurisdiction perfect. To this, it will be answered that consent cannot give jurisdiction: and this axiom is true in regard to a Court of limited jurisdiction, or a Court of general jurisdiction with certain subjects excluded. But jurisdiction over this subject matter is given to the Court, and the only party in interest assenting, cannot afterwards interfere. Hurd vs. Tombes, 7 How., ( Miss.) 229; Leigh vs. Mason, 1 Scammon, 249; Grignon's Lessee vs. Astor, et al., 2 Howard, 338; Hayes vs. Lusby, 5 H. & J., 485; Gatchell, use of Worthington, vs. Presstman and Purviance, 5 Md. Rep., 161; Funk vs. Newcomer, et al., 10 Md. Rep., 317.

Lewis H. Wheeler and Richard J. Gittings, for the appellee:

The mortgage in the case of Horwitz vs. Cole, contained a clause authorizing the mortgagee to sell the mortgaged premises upon certain terms therein expressed, according to the provisions of the Code of Public General Laws, Art. 64, sec. 5. The proceedings in that case were null and void, for want of the preliminary bond required by the sixth section of said Article. The condition of the bond filed in that case was: "That if the above bounden Orville Horwitz, shall well and faithfully perform the trust reposed in him by the deed of mortgage aforesaid, then this bond shall be null and void." The condition required by the Code of Public General Laws, (Art. 64, sec. 6,) is "To abide by and fulfil any order or decree which shall be made by any Court of Equity, in relation to the sale of such mortgaged property, or the proceeds thereof." "And such bond" it is declared "shall be and remain as an indemnity to and for the security of all persons interested in such mortgage property or the proceeds thereof." No jurisdiction could vest in the Circuit Court for Baltimore county, until a bond was filed in accordance with the said provisions of the Code. It was a special statutory proceeding in the exercise of a special limited jurisdiction in derogation of the common law; and a bond in exact conformity with the Act of Assembly, is absolutely necessary to give the Court jurisdiction. Without it, the sale and all the other proceedings, are not merely voidable, but absolutely void, the whole proceedings being coram non judice. McCabe, et al. vs. Ward, 18 Md. Rep. 505; Tucker, et al. vs. State, 11 Md. Rep. 329; Clark & Jackson vs. Bryan & Lunt, 16 Md. Rep., 176; see also Act of 1826, ch. 192, and Act of 1833, ch. 181.

"In all cases of a special limited jurisdiction the proceedings must conform strictly to the authority conferred." Swann vs. Mayor and C. C. of Cumberland, 8 Gill, 152; Shivers vs. Wilson, 5 H. & J., 133; Boarman vs. Israel and Patterson, Ex'rs, 1 Gill, 381; Williamson vs. Carman, 1 G. & J., 195, 197, 198.

Here the jurisdiction never attached. Elliott vs. Piersol, 1 Pet., 340.

The proceedings in the case of Horwitz vs. Cole being void, were of no legal effect whatever, either for the purpose for which they were offered by the appellants, viz to show title to the wheat crop in themselves, or for any other purpose. Shriver's Lessee vs. Lynn, 2 How., 43; Savage Man'g Co. vs....